A human rights act for New South Wales? An edited version of The Annual Hon Barry O’Keefe AM QC Memorial Lecture, 8 March 2023
A national bill of rights
Australia sits as an anomaly among comparable democratic countries in not adopting a bill of rights at a national level, whether as a creature of statute or enshrined in the Commonwealth Constitution.1
There has long been a debate about whether Australia should adopt a national bill of rights. That debate spans as far back, on one view, to 1944 when the then Labor government sought to amend the Constitution via a referendum to restrict the Commonwealth’s legislative powers for a period of five years after the second world war. These restrictions included an express power that ‘Neither the Commonwealth nor a State may make any law for abridging the freedom of speech or of expression’ (proposed s 60A(2) of the Constitution).2 The referendum failed.
In 2008, the then Labor government under Kevin Rudd established the National Human Rights Consultation Committee to inquire into human rights protection in Australia. The following year, the Committee recommended Australia to adopt a federal Human Rights Act that was based on a ‘dialogue’ model.3 The government rejected this proposal, seemingly on the basis that it may ‘divide’, rather than ‘unite’, the community and create ‘an approach that is divisive or…an atmosphere of uncertainty or suspicion in the community’.4 In fact, I would contend it has been the absence of a federal Human Rights Act that has caught division in the Australian community when it comes to matters of religious freedom, freedom of expression and the equal treatment of all persons regardless of their sex, sexual orientation and race.
The debate about the need for a national bill of rights continues today.5 On 7 March 2023, the President of the Australian Human Rights Commission launched its proposed model for a national human rights act.6 It is hoped that the current Attorney-General Mark Dreyfus KC will take this historic report to Cabinet and seek its endorsement to pursue the recommendation of the Australian Human Rights Commission. While I am a strong supporter of a Voice to Parliament, it is my respectful view that a National Human Rights Act would have a stronger impact on the lives of First Nations people and indeed all Australians. However, I am troubled that there appears to be little political will or energy in the Commonwealth Parliament to legislate for, or constitutionally enshrine, a National Bill of Rights.
A bill of rights in the state and territories
There has been relatively more political energy at least in some states and territories to enact a bill of rights. The Australian Capital Territory was the first jurisdiction in Australia to enact a bill of rights in the Human Rights Act 2004 (ACT), with Victoria following suit in 2016 with the Charter of Human Rights and Responsibilities Act 2006 (VIC) (Victorian Charter). Queensland has also joined too with its Human Rights Act 2019 (QLD) coming into effect from 1 January 2020.
New South Wales
New South Wales does not have an equivalent bill of rights and, similar to the Commonwealth level, there is degree of political inertia for any reform on this issue.
In 1999, because of the work of the visionary NSW Attorney General Jeff Shaw QC, the Standing Committee on Law and Justice in New South Wales undertook an inquiry into and reported on whether it was appropriate and in the public interest to enact a legislative bill of rights in the state. However, the Committee recommended that it was not in the public interest to enact a legislative bill of rights in the state. This was because of its concern that a national bill would ‘change… the respective roles of the Judiciary and the Parliament’ and ‘undermine the legitimacy of both institutions, in return for a largely uncertain impact on the protection of human rights’.7 Instead, the Standing Committee recommended that a parliamentary Scrutiny of Legislation Committee be established.8
In 2002, the Legislation Review Amendment Act 2002 (NSW) was passed to expand the role of the Regulation Review Committee (re-named as the ‘Legislation Review Committee’). Its role included considering any Bills introduced into Parliament and reporting to both Houses of Parliament as to whether any such Bill – inter alia – trespassed unduly on personal rights or liberties, or made rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers or non-reviewable decisions.9 The Legislation Review Committee still holds that function today, but its advisory nature is limited and, for example, it cannot question the policy or legislative intent of legislation, conduct hearings or receive public submissions.10
In 2006, as a consequence of extraordinary anti-terrorism security legislation and in light of the Cronulla race riots in 2005, Bob Debus, NSW Labor Attorney General, announced his support for a charter of rights based on the ACT law. It was envisaged that the charter would allow courts to consider whether any New South Wales laws infringed basic human freedoms. The proposal extended to guaranteeing freedoms such as the right to a fair trial, the freedom of assembly, property rights, and freedom from torture and racial discrimination.11
In 2007, Attorney-General John Hatzistergos rejected a charter of rights for New South Wales.12 Regrettably, he asserted that a charter would move the debate about human rights from the political into the judicial arena, thereby threatening judicial independence. He also asserted that a charter would convert community values to ‘legal battlefields’.13 As I will expand upon later, this view is misconceived and ought be rejected.
That was more than a decade ago. It is now time for New South Wales to enact a legislative bill of rights. It should be a priority of the NSW Parliament after the State Election on 25 March 2023.
New South Wales should adopt a bill of rights
We are now living in unsettled times. Some may call it a ‘brave new world’, where it has become ever more so important for our human rights and freedoms to be protected and not eroded. Putting aside the broader international stage such as the war in Ukraine, the ‘brave new world’ we now inhabit is home to numerous human rights issues arising from – to just a name a few – the COVID-19 pandemic, political protests, deaths in custody, refugees and asylum seekers, LGBTQI+ rights, and law and order politics. Enacting a bill of rights in New South Wales is crucial to our society upholding core democratic values of dignity, equality, fairness and freedom.14 That is the reason why the time is right for a legislative bill of rights in New South Wales.
So, what is a bill of rights?
A bill of rights is an instrument that ‘set[s] out a broad set of ‘fundamental’ rights and grant these an overarching status within domestic law’.15 The strength of any bill of rights depends on:
a. its form, such as in legislation or constitutionally enshrined;
b. its substantive scope of rights’ protection;
c. the status of human rights compared to other legal rights and interests;
d. the power and responsibilities of the three arms of government; and
e. the extent to which the instrument is entrenched against any repeal or amendment.
The United States and Canada each have a constitutionally entrenched bill of rights. The United Kingdom has a statutory bill of rights (the Human Rights Act 1998 (UK)). In New Zealand, the New Zealand Bill of Rights Act 1990 (NZ) is a statute that forms part of its uncodified constitution. New South Wales has a written constitution, the Constitution Act 1902 (NSW), which provides for the powers of the legislature, the executive and the judiciary. There is, therefore, theoretically a choice between enacting a legislative bill of rights or a constitutional bill of rights in New South Wales.
In this connection, the act of enshrining a bill of rights into the Constitution Act 1902 could signal the fundamental importance of human rights in society, by giving the perception of it being a ‘higher law’ with ‘a higher status than ordinary legislation and which cannot be altered without undertaking a particularly arduous process’.16
However, in reality, the Constitution Act 1902 is relatively flexible. Subject to the Commonwealth Constitution, the States have full legislative power. Only a limited category of State laws relating to the ‘constitution, powers or procedure’ of the State Parliament can be the subject of a ‘manner or form’ requirement and therefore, subject to some level of entrenchment and may require a referendum or approval by a special majority of members of Parliament. Laws concerning human rights are not subject to any ‘manner or form’ requirements.17 As such, any bill of rights in the Constitution Act 1902 can be easily amended, modified or repealed.
In my view, it is sufficient to simply legislate a statutory bill of rights in New South Wales, for practical reasons. The issue of human rights is vexed. It is politically charged and can be heavily politicised. It also has the capacity to garner strong views from proponents and opponents.
Politically, it may be easier to enact new legislation instead of ‘amending’ the Constitution Act 1902 which, to a section of the public, may understandably appear as drastic and significant and, in turn, may be resisted. We have seen this with community reaction to the current debate about the Voice to Parliament.
So why should New South Wales have a bill of rights?
There is a myriad of reasons why New South Wales should have a legislative bill of rights.
Patchy framework of protections
The chief reason is that Australia presently protects human rights in a ‘piecemeal’ fashion, ‘drawn together from a range of disparate sources’.18 The Commonwealth Constitution protects some human rights through its express guarantees and implied rights,19 including:
a. the right to vote;20
b. acquisition of property on just terms;21
c. trial by jury for offences against
a Commonwealth law tried on indictment;22
d. the freedom of interstate trade, commerce and intercourse within the Commonwealth;23
e. the freedom of religion;24 and
f. the implied freedom of political communication.25
These rights are arguably inadequate in today’s society. For example, the implied freedom of political communication is understood not to be a ‘personal right or freedom’ but merely as a freedom ‘affecting communication on the subjects of politics and government more generally and as effecting a restriction on legislative power which burdens communications on those subjects’.26
Moreover, the Australian Constitution is relatively inert and largely immune from responding to the changing social values and norms of modern society, and the rights it provides for are largely fixed in time.
A suite of Commonwealth and New South Wales legislation seeks to protect specific human rights. Examples include Commonwealth laws governing privacy laws27 and protecting rights relating to work conditions and fair wages.28 In New South Wales, legislation proscribes discrimination on the basis of age,29 disability,30 race31 and sex,32 and governs privacy33 and information.34
Additionally, the common law protects various civil and political rights. for example, client legal privilege, the right to a fair trial,35 procedural fairness,36 and the presumption of innocence.37 The common law has developed principles of statutory interpretation that are designed to protect fundamental rights, such as the principle of legality.38 In the case of ambiguity, a court should favour a construction of a statute that accords with the obligations of Australia under an international treaty.39
However, the common law develops slowly and incrementally. Constant changes in modern society move at a much faster pace than the development of the common law. A fortiori, at times, it can move even faster than the time it takes for a matter to finalise.
Judicial decisions often have the outcome of protecting human rights, but human rights concepts have played no role because ‘protection of individual interests is…merely a consequence of applying constitutional principles that are intended to protect other systemic or public interests’.40
Indeed, judges can only determine the specific factual and legal issues in the matter brought before the courts.41 Even so, judges are sometimes reluctant to invoke legal principles to protect human rights – an example of this is the reluctance to introduce a tort for invasion of privacy.42
The haphazard patchwork of rights does not confer sufficient protection of human rights. Some fundamental rights enjoy a degree of protection, while others are not protected at all. The patchwork leaves gaps. A bill of rights will make clear which rights and freedoms are protected. This is essential to ensuring that New South Wales legislation upholds the fundamental and basic values of dignity, equality and fairness.
In this respect, it is interesting to note that in the six-month community consultation that preceded the introduction of the Victorian Charter, 84% of participants wanted to see the law changed to better protect their human rights. This reflected their aspiration to live in a society that strove for the values that they held dear, such as equality, justice and a ‘fair go’ for all.43
Access
A legislative bill of rights will help ameliorate the present ambiguity as a result of the different sources of law providing for human rights protection. It will allow members of the public to readily identify and understand their rights and freedoms, as opposed to having to penetrate through the current morass of sources of law.
This will help improve access to justice, such as to any remedies where a right has been infringed. Relatedly, a bill of rights will help empower some disenfranchised or disadvantaged sections of the community. Even today, there are still many groups in the community whose rights continue to be denied. These include First Nations people, as well as the handicapped, ethnic minorities, children, women and LGBQTI+ people. A bill of rights would ‘raise the consciousness of the rights’ of these individuals in Australia.44
Human Rights Culture
The third reason relates to the socio-legal role of a bill of rights. A bill of rights can prompt social change and promote dialogue among the Australian community, and between the community and Parliament or public authorities, on human rights values and principles.45 Human rights law aims to ‘modify human interaction in such a way as to simultaneously impose obligations on public authorities and provide members of the community with human rights protections’.46
A bill of rights would be the New South Wales Parliament’s clear statement of the fundamental rights and freedoms to which the state is committed.47 It can help inculcate a human rights culture in the Australian psyche and be an ‘extremely powerful tool for furthering…human rights dialogue and education’.48
The human rights and freedoms to be protected
A bill of rights in New South Wales should, as a minimum, protect rights and freedoms including:
a. right to equality, equal protection of the law without discrimination, and equal protection against discrimination;
b. protection from torture, or cruel, inhuman or degrading treatment or punishment;
c. freedom from forced labour and slavery;
d. freedom of movement, peaceful assembly and association;
e. freedom of thought, conscience, religion and belief;
f. right to take part in public life;
g. right to privacy (the Commonwealth Attorney-General has recently recommended introducing a statutory tort for serious invasions of privacy49);
h. cultural rights generally and those of Aboriginal and Torres Strait Islanders peoples;
i.right to liberty and security and, if liberty is deprived, protection from inhumane treatment;
j. freedom from arbitrary arrest or detention,
k. rights in civil and criminal proceedings such as a right to fair and public hearing;
l. right to education, access to health services and life; and
m. LGBTQI+ issues.
Critics argue that any bill of rights that seeks to enumerate a list of rights will be vague, amorphous and emotively appealing.50 This should not be an impediment. As with any statute, there can be community engagement and public submissions in order to help define and give colour to the contents of the law including that of human rights. Vague or amorphous concepts are commonplace in the law and meaning can be attributed by way of interpretative devices, or legislative definitions, and the law can be adapted.
Recent examples where human rights have been impacted
Recent issues in New South Wales that have touched upon human rights and freedoms, show how a bill of rights may have had some role in shaping the outcome.
First, on 20 January 2023, Australia missed another deadline to implement the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Australia ratified OPCAT in 2017 under the Turnbull government. By 20 January 2023, all States and Territories were required to have implemented oversight regimes or national preventive mechanisms to monitor human rights protections in police cells, jails, mental health facilities and other institutions where people are in detention.
However, New South Wales has failed to implement these regimes/mechanisms due to an apparent funding issue with the Commonwealth.51 This disgraceful failure follows the NSW Government’s obstinate refusal in October 2022 to permit the United Nations Subcommittee on Prevention of Torture access to state-run places of detention,52 which constituted a breach of Australia’s obligations under OPCAT.53
In my view, had New South Wales enacted a bill of rights, it might have focussed the government and public’s minds as to the importance of the right to liberty, as well as protection from torture, or cruel, inhuman or degrading treatment or punishment.
Secondly, the New South Wales government’s response to the ever-evolving COVID-19 pandemic triggered a litany of legislation,54 regulations and Public Health Orders,55 and amendments to those instruments. These instruments imposed significant incursions into private life that were ‘socially transformative’.56 They included mandatory lockdowns,57 mandatory quarantine,58 closure of nonessential premises,59 restrictions on public gatherings,60 mandatory self-isolation,61 stay at home requirements,62 restricted access to aged care facilities and health settings,63 and wearing face coverings.64
Naturally, the nature of the pandemic required ‘quick, decisive and effective action’65. Whether appropriate or not, quite clearly these measures affected, for example, freedom of movement and association, which have been the subject of litigation.66
During the pandemic, NSW Police arrested and fined six protestors at a Black Lives Matter protest in July 2020.67 Potential issues that may have arisen were: (i) whether that impinged on the freedom of expression, peaceful assembly and association and the right to take part in public life; and (ii) whether the detention increased a person’s risk of contracting the COVID-19 virus so as to constitute a breach of the requirement for humane treatment while liberty is being deprived or even the protection against cruel, inhuman or degrading treatment.68 More broadly, Revenue NSW cancelled over 33,000 fines issued by NSW Police during the pandemic, on the basis that the fines were invalid.69 It would have been interesting to see the impact of a legislative bill of rights in New South Wales if one existed during the height of the pandemic and, specifically, whether any of the measures imposed might have been pared back to be less intrusive on rights and freedoms.
Thirdly, both the current New South Wales government70 and the opposition71 have publicly supported measures to ban conversion therapy in the state. No doubt this will be a live issue if and when a ban is imposed. Every person should have the right to freedom of thought, equal protection against discrimination, and not be treated in a cruel, inhuman or degrading way, or subjected to medical or scientific treatment without the person’s free and informed consent. The use of conversion therapy perpetuates the offensive notion that LGBTQI+ people require some need for fixing by methods such as aversion therapy, forced medication, beatings, lobotomy, castration and clitoridectomy.72
However, there is likely to be debate as to how any ban is to be balanced against religious organisations wishing to exercise their freedom of thought, religion and belief in respect of LGBTQI+ issues. Premier Perrottet and Opposition Leader Minns have assured religious leaders that a ban on gay conversion therapy will not infringe the right of religious figures to pray and preach on matters pertaining to sexuality.73 The Australian Capital Territory has passed the Sexuality and Gender Identity Conversion Practices Act 2020 (ACT) criminalising sexuality or gender identity conversion therapy on a ‘protected person’ (being a child or person with impaired decision-making ability in relation to a matter relating to the person’s health or welfare’ (s 8 and Dictionary)). The legislation operates in tandem with s 10 of the Human Rights Act 2004 (ACT) which protects a person from treatment in a cruel, inhuman or degrading way.
In August 2020, Queensland also criminalised ‘conversion therapy’74 carried out by a person who is health service provider.75 This ban is in addition to s 17 of the Human Rights Act 2019 (QLD) which protects a person from treatment in a cruel, inhuman or degrading way.
The model for a human rights bill that should be adopted in New South Wales
New South Wales should adopt a statutory ‘dialogue’ model like that of its Victorian, Queensland and Australian Capital Territory counterparts and which is not constitutionally entrenched.76 Broadly, each of the three branches of government have a role to play in protecting and promoting human rights and there is dialogue between them. However, Parliament has the final or ultimate say on the validity of legislation vis-à-vis human rights, thereby maintaining Parliamentary sovereignty or supremacy.77
There are some key features in the three different regimes.
Compatibility with human rights
First, like Victoria, Queensland recognises that human rights are not absolute. This is an important recognition. There are times where individual interests might not prevail over those of the community, and vice versa.78 The COVID-19 pandemic represented a time where individual interests had to yield to those of the community. Section 13(1) of the Human Rights Act 2019 (QLD) provides that a ‘human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’.
Section 13(2) then provides for seven nonexhaustive factors that a court may consider in deciding whether a limit on a human right is reasonable and justifiable. It is envisaged that courts will apply a proportionality test when applying s 13(2).79
An equivalent provision exists in s 7(2) of the Victorian Charter, with five nonexhaustive factors.
The Queensland provisions make clear that the concept of ‘compatibility with human rights’ is linked to other aspects of the Human Rights Act 2019 (QLD). Section 8 provides that ‘An act, decision or statutory provision is compatible with human rights if the act, decision or provision’ either (a) ‘does not limit a human right’, or (b) ‘limits a human right only to the extent that it is reasonable and demonstrably justifiable in accordance with section 13 (which contains a proportionality test). This language is found in other provisions such as the statutory interpretative clause (s 48), statement of compatibility (s 38) and obligations of public entities (s 58).
This link in s 8 is crucial. It seeks to address a vexed issue in relation to the Victorian Charter, which does not contain an equivalent to s 8. In the absence of a definition of ‘compatible with human rights’ in the Victorian Charter, the relationship between s 13 and the other operative provisions of the Victorian Charter has been the subject of constitutional challenge in the High Court in Momcilovic v The Queen (2011) 245 CLR 1 (Momcilovic). The Court was deeply divided on the issue.80
Critics of the proportionality analysis
I pause here to focus on the proportionality analysis in s 13(2) of the Human Rights Act 2019 (QLD). Putting aside the potential constitutional issues associated with a proportionality analysis,81 some opponents to a bill of rights are discontent with the notion of proportionality being employed in a human rights context. However, the very nature of human rights is that it is not absolute – they need to be balanced against other protected rights (such as contractual rights) and they may conflict with other ‘non-protected values’.82 It is the ability to restrict rights that helps establish an ‘institutional dialogue about rights between the three arms of government’ rather than simply ‘representative or judicial monologues about rights’.83
Courts have on various occasions employed what is coined the ‘structured proportionality’84 test to determine and adjudicate complex issues. For example, the High Court in McCloy v New South Wales (2015) 257 CLR 178 (by majority)85 and Comcare v Banerji (2019) 267 CLR 37386 adopted a structured proportionality test to determine whether a burden on the implied freedom of political communication was justified. So too did the majority of the High Court in Palmer v Western Australia (2021) 272 CLR 505 concerning the freedoms under s 92 of the Constitution. Clearly, proportionality analysis is not foreign to courts. It is not a ‘perfect method’87 and judges such as Gageler J are in favour of a less structured approach to proportionality88 and prefer something more akin to a ‘categorisation’ approach’.89
No method is perfect but ‘some method is necessary if lawyers and legislators are to know how the question of justification is to be approached in a given case.’90 When introduced into the human rights context, proportionality analysis can help promote transparency and a greater focus on the impact of legislation on human rights and freedoms.
Interpretative provision and the declaration of incompatibility or inconsistent interpretation
Section 32(1) of the Victorian Charter provides that ‘[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’. Section 36(2) of the Victorian Charter allows the Supreme Court to make a declaration of inconsistent interpretation if it is of the opinion that a statutory provision cannot be interpreted consistently with a human right. Within 6 months after receiving a declaration of inconsistent interpretation, the relevant Minister must prepare a written response and cause a copy of the declaration and the response to be laid before each House of Parliament and be published in the Gazette (s 37). The equivalent provisions in the Human Rights Act 2019 (QLD) are ss 53, 54 and 56.
The main criticisms of these two key features have centred largely on undermining sovereignty or supremacy of an elected Parliament in favour of an unelected judiciary91 and the related notion of politicising the judiciary.
In my view, those concerns are exaggerated.
First, s 36(5) of the Victorian Charter makes plain that a declaration of inconsistent interpretation does not affect the validity, operation or enforcement of an Act or provision of an Act that is incompatible with a human right. Nor does it affect the validity of a subordinate instrument made under such an Act. It also does not create in any person any legal right or give rise to any civil cause of action. The equivalent provision in the Human Rights Act 2019 (QLD) is s 48. It can hardly be said that Parliamentary sovereignty is undermined.
Secondly, even if a court was empowered to strike down legislation that is not compatible with a human right, at a level of principle, this is no different to other bases, such as constitutional or administrative grounds, upon which a court may be asked to decide on the validity of legislation.
Thirdly, courts are also commonly tasked to rule on legal issues that have a strong political undertone or the subject of significant political debate. That has never detracted from a judge’s task to impartially decide a case.92 As Justice Stein aptly said:93
Such a label [politicisation of the judiciary] is misconceived. Charters or Bills of Rights have not, for example, politicised the courts of New Zealand or Canada. There is a good reason why this is so. Courts have always been reviewers and interpreters of the rules by which society operates, that is through legislation. Nothing about the institutional arrangements of courts changes with the introduction of Charters of Right.
It’s a funny thing about the politicisation argument. It is an argument rarely used where courts prevent rights. However when courts interpret rights expansively, critics say they are ‘politicised’.
Fourthly and related to the above point, the ‘important truth of human rights protection’ is that all three branches of government ‘[s]hare an equally legitimate role in the interpretation and imposition of limitations upon rights’. The dialogue between all three branches enables the judiciary to comment upon the adequacy of legislation or the actions of the executive; the legislature can choose to respond by, for example, amending legislature or administrative practices. It may take the opposite view and ignore or reject a declaration of incompatibility.94
As Babie opines,95 a bill of rights will affect in some way the distribution of power between the three branches of government, but the dialogue is an ‘inherent dimension of the institutional interpretation of the three branches’ and the judiciary acts as an ‘additional brake or restraint’ on the excesses of power of Parliament and the executive.96 These checks and balances ensure that the other branches of government are held to account for their actions, guard against any misuse, arbitrary, capricious or abuse of power and therefore, protects the liberty and rights of individuals.97
Fifthly, a concern that the ‘dialogue’ model may be ‘weak’ 98 or ‘soft’ because the judiciary is not empowered to invalidate legislation on the basis of incompatibility with human rights. In my view, at least in Victoria, it may be too weak after the chilling effect of the High Court’s decision in Momcilovic, in which the majority of the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, Heydon J dissenting)99 held that the interpretative provision in s 32(1) of the Victorian Charter of Rights did not permit a Court to depart from the ordinary meaning (literal or grammatical meaning) of a provision so as to interpret a provision as being compatible with a human right. All members of the High Court held that an exercise of power under s 36 (concerning the declaration of inconsistent interpretation) was not judicial in nature.100 The Court did not set down guidance for the disposition of future cases involving similar principles of law.
Since Momcilovic, intermediate courts have understood s 32(1) as equating with the common law principle of legality, except with a ‘wider field of application’.101 The High Court has expressly reserved judgment on this issue.102 It has been held that:103
a. if the words of a statute are clear, the court must give them that meaning;
b. if the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question;
c. however, it is not permissible for a court to attribute a meaning to a provision that is inconsistent with both the grammatical meaning and the apparent purpose of the enactment;
d. section 32(2) ‘does not allow the reading in of words which are not explicit or implicit in a provision, or the reading down of words so far as to change the true meaning of a provision’.104
As a result, the role of s 32(1) is in some respects otiose. It is likely that the Queensland courts will interpret its equivalent provision in s 48 of the Human Rights Act 2019 (QLD) in a similar way. However, there is an exception for ‘exceptional circumstances’. What those constitute remain to be seen.
Courts have consequently been hamstrung in their ability to construe legislation in compatibility with human rights. It is counter-intuitive to provide an interpretative provision in a bill of rights, yet curtail the ambit and application of that interpretative provision such as merely to confirm a construction of statute arrived at using pre-existing canons and principles of statutory construction.
In my view, any bill of rights adopted by New South Wales should give courts an interpretative provision that allows for remedial interpretations to ensure that statutory provisions can be interpreted consistently and compatibly with human rights.
Statement of compatibility by the minister
Section 28 of the Victorian Charter provides that a member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill. The statement must state whether the Bill is compatible with human rights and if so, how, and if not, the nature and extent of the incompatibility. Analogous provisions are found in ss 38 and 41 of the Human Rights Act 2019 (QLD).
This is a key feature of a bill of rights, often I think overlooked by apparent issues of parliamentary sovereignty and judicial politicisation. Such a statement entails Parliament focussing on how proposed laws interact with human rights and provides some transparency and accountability on proposed laws vis-à-vis human rights.
Furthermore, as articulated by Russell Solomon, the ‘least understood yet arguably most significant’ dialogue arising from a bill of rights is that between the parliament and the community.105 That dialogue enables members of the community and public to engage with law-makers to see how human rights and freedoms are taken into account (if at all) in the process of making law. It allows ‘members of the community, often led by advocates, fulfilling a role of prodding the parliament and government in the direction of greater adherence to human rights principles’ and thus, enhances accountability and the responsiveness of government. Through this, a human rights culture can be nurtured.106
And, finally, human rights culture is nurtured by other provisions in the Victorian Charter that make it unlawful for a public authority to ‘act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right’ (s 38(1)) (see also s 58(1) of the Human Rights Act 2019 (QLD)).
Conclusion
The ‘time is ripe for a bill of rights’107 in New South Wales. We need to protect the values that we hold dear in our society to ensure dignity, equality, fairness and freedom, and that the rights of First Nations people, children and minority groups are adequately protected. It should not take some major event, or egregious or flagrant disregard or breach of human rights, to be the ‘political trigger’108 for an adoption of a bill of rights in this state. Indeed, we should be doing all we can to prevent that by legislating for a bill of rights now.
As Kirby J recognises, no one ‘says that a bill of rights alone will protect the rights of the people’, but nor does the majoritarian democracy in Parliament.109 Even a modern democracy such as Australia and its constituent states and territories are imperfect. There is always room for improvement, which includes room for a legislated bill of rights in New South Wales.
At the end of the day, as Nelson Mandela once said, ‘To deny people their human rights is to challenge their very humanity’. The choice rests with all of us. BN
ENDNOTES
1 Rosalind Dixon, ‘An Australian (partial) Bill of Rights’ (2016) 14 International Journal of Constitutional Law 80.
2 The proposed amending Act was the Alteration (Post-War Reconstruction and Democratic Rights) Bill 1944 (Cth).
3 National Human Rights Consultation, ‘National Human Rights Consultation Committee Report’ (September 2009) –see Recommendations 18 and 19.
4 Commonwealth of Australia, ‘Australia’s Human Rights Framework’ (April 2010), 1.
5 Rosalind Dixon, ‘A Minimalist Charter of Rights for Australia: the UK or Canada as a Model?’ (2009) 37 Federal Law Review 335.
6 Australian Human Rights Commission, ‘A Human Rights Act for Australia’ (2023).
7 Standing Committee on Law and Justice, ‘A NSW Bill of Rights’ (Report 17, October 2001), [7.3].
8 Standing Committee on Law and Justice, ‘A NSW Bill of Rights’ (Report 17, October 2001), [8.47].
9 Legislation Review Act 1987 (NSW) s 8A.
10 Joseph Cho, ‘NSW Parliament’s Oversight of Human Rights in the First Year of the COVID-19 Pandemic’ (2021) 47 Alternative Law Journal 67, 69.
11 Jonathan Pearlman, ‘Charter of Rights plan to be put to Cabinet’ (20 March 2006) Sydney Morning Herald, https://www.smh.com.au/national/charter-of-rights-plan-to-be-putto-cabinet-20060320-gdn6vd.html.
12 Jonathan Pearlman, ‘Attorney-General Rejects Charter of Rights for NSW’ (18 April 2007), Sydney Morning Herald,<https://www.smh.com.au/national/attorney-general-rejectscharter-of-rights-for-nsw-20070418-gdpxrx.html>.
13 Alex Bosell, ‘A-G rejects ‘dangerous’ Rights Charter’ (11 April 2008), Australian Financial Review <https://www.afr.com/companies/professional-services/a-g-rejects-dangerous-rightscharter-20080411-jctvt>.
14 Pauline Wright and Stephen Kiem SC, Law Council of Australia, ‘No Time like the Present to Protect our Human Rights’ (Speech, National Press Club, Canberra, 18 November 2020).
15 David Erdos, ‘The Rudd Government’s Rejection of an Australian Bill of Rights: a Stunted Case of Aversive Constitutionalism?’ (2012) 65 Parliamentary Affairs 359, 361.
16 Anne Twomey, ‘The Dilemmas of Drafting a Constitution for a New State’ (2013) 28 Australasian Parliamentary Review 17, 18.
17 Anne Twomey, ‘The Dilemmas of Drafting a Constitution for a New State’ (2013) 28 Australasian Parliamentary Review 17, 19.
18 Paul T Babie, ‘Australia’s ‘Bill of Rights’’ (2021) 97 University of Detroit Mercy Law Review 187, 189.
19 For a summary, see: Chief Justice Robert French, ‘Protecting Human Rights without a Bill of Rights’ (Speech, John Marshall Law School, Chicago, 26 January 2010).
20 Commonwealth Constitution s 41; Rowe v Electoral Commissioner (2010) 243 CLR 1.
21 Commonwealth Constitution s 51(xxxi).
22 Commonwealth Constitution s 80.
23 Commonwealth Constitution s 92.
24 Commonwealth Constitution s 116.
25 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; McCloy v New South Wales (2015) 257 CLR 178; LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18.
26 Unions NSW v State of New South Wales (2013) 252 CLR 530 at [52]; McCloy v New South Wales (2015) 257 CLR 178 at [30]; Brown v The State of Tasmania (2017) 261 CLR 328 at [90].
27 Privacy Act 1988 (Cth).
28 Fair Work Act 2009 (Cth).
29 Age Discrimination Act 2004 (NSW).
30 Disability Discrimination Act 1992 (NSW).
31 Racial Discrimination Act 1975 (NSW).
32 Sex Discrimination Act 1984 (NSW).
33 Privacy and Personal Information Act 1998 (NSW).
34 Freedom of Information Act 1989 (NSW).
35 Dietrich v The Queen (1992) 177 CLR 292.
36 Kiao v West (1985) 159 CLR 550; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326.
37 Carr v Western Australia (2007) 232 CLR 138; Lee v The Queen (2014) 253 CLR 455.
38 Re Bolton; Ex parte Beane (1987) 162 CLR 514; Coco v The Queen (1994) 179 CLR 427.
39 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.
40 George Williams, ‘The High Court, the Constitution and Human Rights’ (2015) 21 Australian Journal of Human Rights 1, 6-7.
41 Justice Kirby, ‘A Bill of Rights for Australia – but do we need it?’ (1997) 21 Commonwealth Law Bulletin 276, 281.
42 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Grosse v Purvis [2003] QDC 151; Doe v Australian Broadcasting Corporation [2007] VCC 281; Giller v Procopets (2008) 24 VR 1 cf. Glencore International AG v Commissioner of Taxation (2019) 265 CLR 646.
43 George Williams, ‘The Victorian Charter of Human Rights and Responsibilities: Origin and Scope’ (2007) 30 Melbourne University Law Review 880.
44 Justice Kirby, ‘A Bill of Rights for Australia – but do we need it?’ (1997) 21 Commonwealth Law Bulletin 276, 281.
45 Russell Solomon, ‘A Socio-Legal Lens on the Victorian Charter’ (2013) 38 Alternative Law Journal 152, 155.
46 Anita Mackay, ‘Operationalising Human Rights Law in Australia: Establishing a Human Rights Culture in the New Canberra Prison and Transforming the Culture of Victoria Police’ (2014) 31 Law in Context 261, 293.
47 Australian Human Rights Commission, ‘National Human Rights Consultation’ (Submissions, June 2009), [230].
48 Australian Human Rights Commission, ‘National Human Rights Consultation’ (Submissions, June 2009), [232]
49 Commonwealth Attorney-General’s Department, ‘Privacy Act Review’ (Report 2022), 180.
50 James Allan, ‘Why Australia does not have, and does not need, a National Bill of Rights’ (2012) 24 Journal of Constitutional History 35, 39.
51 Matthew Doran, ‘Australia Misses Another Deadline to Implement International Anti-torture Treaty’ (20 January 2023), ABC News <https://www.abc.net.au/news/2023-01-20/australia-misses-deadline-to-implement-anti-tortureagreement/ 101874602#:~:text=Australia%20signed%20up%20to%20a,Queensland%20have%20missed%20the%20deadline>.
52 Erin Handley, ‘UN Torture Prevention Body Suspends Australia trip citing ‘clear breach’ of OPCAT Obligations’ (24 October 2022), ABC News <https://www.abc.net.au/news/2022-10-24/opcat-un-torture-prevention-suspendsaustralia-trip-clear-breach/101569880>.
53 United Nations, ‘UN torture prevention body suspends visit to Australia citing lack of co-operation’ (23 October 2022) https://www.ohchr.org/en/press-releases/2022/10/un-torture-preventionbody-suspends-visit-australia-citing-lack-co-operation.
54 For example, COVID-19 Legislation Amendment (Emergency Measures) Act 2020, COVID-19 Legislation Amendment (Emergency Measures—Treasurer) Act 2020.
55 For example, Public Health (COVID-19 General) Order 2021, Public Health (COVID-19 Self-Isolation) Order 2020, Public Health (COVID-19 Public Events) Order 2020, Public Health (COVID-19 Mandatory Face Coverings) Order 2021.
56 Joseph Cho, ‘NSW Parliament’s Oversight of Human Rights in the First Year of the COVID-19 Pandemic’ (2021) 47 Alternative Law Journal 67, 71.
57 For example, Public Health (COVID-19 Northern Beaches) Order 2020 (NSW).
58 For example, Public Health (COVID-19 Air Transportation Quarantine) Order 2020 (NSW).
59 For example, Public Health (COVID-19 Gatherings) Order (No 2. 2020 (NSW).
60 Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW).
61 For example, Public Health (COVID-19 Self-Isolation) Order 2020 (NSW).
62 Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW).
63 Public Health (COVID-19 Residential Aged Care Facilities) Order 2020 (NSW).
64 For example, Public Health (COVID-19 Mandatory Face Coverings) Order 2021 (NSW).
65 Kylie Evans and Nicholas Petrie, ‘COVID-19 and the Australian Human Rights Acts’ (2020) 45 Alternative Law Journal 150, 175.
66 For example, Palmer v The State of Western Australia (2021) 272 CLR 505 (s 92 of the Constitution).
67 David Marin-Guzman, ‘Black Lives Matter Protest Called off Following Arrests’ (28 July 2020), Australian Financial Review<https://www.afr.com/policy/health-and-education/black-livesmatter-protest-called-off-following-arrests-20200728-p55g67>.
68 Kylie Evans and Nicholas Petrie, ‘COVID-19 and the Australian Human Rights Acts’ (2020) 45 Alternative Law Journal 150, 177.
69 Maryanne Taouk, ‘Revenue NSW cancels more than 33,000 COVID-19 fines after Supreme Court’ (29 November 2022) ABC News <https://www.abc.net.au/news/2022-11-29/revenue-nsw-cancels-33-121-covid-19-fines/101710632>.
70 Lucy Cormack, ‘‘Bring to an End Harmful Practices’: Premier to back Ban on Gay Conversion Practices’ (17 February 2023) Sydney Morning Herald <https://www.smh.com.au/politics/nsw/bring-to-an-end-harmful-practices-premier-to-back-banon- gay-conversion-practices-20230216-p5cl3c.html>.
71 Mary Ward, ‘Minns backs Ban on ‘dangerous and damaging’ Gay Conversion Therapy’ (11 February 2023) Sydney Morning Herald <https://www.smh.com.au/politics/ nsw/minns-backs-ban-on-dangerous-and-damaging-gayconversion-therapy-20230211-p5cjqd.html>.
72 Christoffer Aguilar, UNSW Human Rights Institute, ‘What the Queensland and ACT bans on Conversion Therapy mean for LGBTQI+ Australians’ <https://www.humanrights.unsw.edu.au/news/what-queensland-and-act-bans-conversiontherapy-mean-lgbtqi-australians>.
73 Michael Coziol, ‘‘We won’t ban preaching’: Perrottet puts caveats on gay conversion law’ (23 February 2023) Sydney Morning Herald <https://www.smh.com.au/politics/nsw/we-won-t-ban-preaching-perrottet-puts-caveats-on-gayconversion-law-20230222-p5cmtc.html>.
74 As defined in Public Health Act 2005 (QLD) s 213F.
75 Public Health Act 2005 (QLD) s 213H.
76 Bruce Chen, ‘Revisiting Section 32(1) of the Victorian Charter: Strained Constructions and Legislative Intention’ (2020) 46 Monash University Law Review 174, 175.
77 Kent Blore and Brenna Booth-Marxson, ‘Breathing Life into the Human Rights Act 2019 (QLD): The Ethical Duties of Public Servants and Lawyers Acting for Governments’ (2022) 41 The University of Queensland Law Journal 1, 3.
78 Paul T Babie, ‘Australia’s ‘Bill of Rights’’ (2021) 97 University of Detroit Mercy Law Review 187, 202.
79 Explanatory Notes to the Human Rights Bill 2018 (Qld), 5.
80 Bruce Chen, ‘The Human Rights Act 2019 (QLD): Some Perspectives from Victoria’ (2020) 45 Alternative Law Journal 4, 6.
81 Momcilovic v The Queen (2011) 245 CLR 1 at [34]-[36] (French CJ), [408]-[409] (Hayne J), [431] (Heydon J dissenting), [559]-[561], [572]-[575] (Crennan and Kiefel JJ).
82 Julie Debeljak, ‘Balancing Rights in a Democracy: the Problems with Limitations and Overrides of Rights under the Victorian Charter of Human Rights and Responsibilities Act 2006’ (2008) 32 Melbourne University Law Review 422, 424.
83 Julie Debeljak, ‘Balancing Rights in a Democracy: the Problems with Limitations and Overrides of Rights under the Victorian Charter of Human Rights and Responsibilities Act 2006’ (2008) 32 Melbourne University Law Review 422, 424.
84 Blore, ‘Proportionality under the Human Rights Act 2019 (QLD): when are the factors in s 13(2) necessary and sufficient and when are they not?’ p. 435.
85 At [2] (French CJ, Kiefel, Bell and Keane JJ).
86 At [32]-[38] (Kiefel CJ, Bell, Keane and Nettle JJ).
87 Palmer v Western Australia (2021) 272 CLR 505 at [56] (Kiefel CJ and Keane J).
88 See, for example, McCloy v New South Wales (2015) 257 CLR 178 at [142]-[145].
89 Tajjour v New South Wales (2014) 254 CLR 508 at [151]; McCloy v New South Wales (2015) 257 CLR 178 at [153]; Brown v The State of Tasmania (2017) 261 CLR 328 at [164].
90 Palmer v Western Australia (2021) 272 CLR 505 at [56] (Kiefel CJ and Keane J).
91 Standing Committee on Law and Justice, ‘A NSW Bill of Rights’ (Report 17, October 2001), [6.6].
92 Murray Gleeson, ‘The Role of a Judge in a Representative Democracy’ (4 January 2008); Murray Gleeson, ‘The Role of the Judge and Becoming a Judge’ (Speech, Sydney, 16 August 1998).
93 Standing Committee on Law and Justice, ‘A NSW Bill of Rights’ (Report 17, October 2001), [5.66].
94 Paul T Babie, ‘Australia’s ‘Bill of Rights’’ (2021) 97 University of Detroit Mercy Law Review 187, 203.
95 Paul T Babie, ‘Australia’s ‘Bill of Rights’’ (2021) 97 University of Detroit Mercy Law Review 187, 204.
96 Marbury v Madison 5 U.S. 137 (1803); Kirk v Industrial Relations Commission (2010) 239 CLR 531 (based on Ch III of the Constitution (Australia)).
97 Eric Barendt, ‘Separation of Powers and Constitutional Government’ (1995) Public Law 599; Justice Dyson Heydon, ‘Are bill of rights necessary in common law systems’ (Speech, 23 January 2013).
98 Paul T Babie, ‘Australia’s ‘Bill of Rights’’ (2021) 97 University of Detroit Mercy Law Review 187, 204.
99 Momcilovic v The Queen (2011) 245 CLR 1 at [46], [62] (French CJ), [146], [170]-[171] (Gummow J), [280] (Hayne J), [544]-[545] (Crenann and Kiefel JJ), [684] (Bell J). Heydon J dissented at [450].
100 [Momcilovic v The Queen (2011) 245 CLR 1 at 80], [89], [95] (French CJ), [178] (Gummow J), [280] (Hayne J), [457] (Heydon J), [584] (Crennan and Kiefel JJ), [661] (Bell J).
101Momcilovic v The Queen at [51] (French CJ).
102 Minogue v State of Victoria (2018) 264 CLR 252 at [55] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
103 Salveski v Smith (2012) 34 VR 206 at [23], [45]; Carolan v The Queen (2015) 48 VR 87 at [46]; Harkness v Roberts [2023] VSC 10 at [34].
104 Salveski v Smith (2012) 34 VR 206 at [45].
105 Russell Solomon, ‘A Socio-Legal Lens on the Victorian Charter’ (2013) 38 Alternative Law Journal 152, 153.
106 Russell Solomon, ‘A Socio-Legal Lens on the Victorian Charter’ (2013) 38 Alternative Law Journal 152, 153.
107 Irina Kolodizner, ‘The Charter of Rights Debate: a Battle of the Models’ (2009) 16 Australian International Law Journal 219.
108 David Erdos, ‘The Rudd Government’s Rejection of an Australian Bill of Rights: a Stunted Case of Aversive Constitutionalism?’ (2012) 65 Parliamentary Affairs 359, 368.
109 Justice Kirby, ‘A Bill of Rights for Australia – but do we need it?’ (1997) 21 Commonwealth Law Bulletin 276, 282.